Less than two months after the last elections, Mexicans return this Sunday to vote in what is popularly known as “consultation to judge former presidents.”
Consultations are one of the ways of participation favorites of the president, Andrés Manuel López Obrador (AMLO) . Not surprisingly, “we are going to ask Mexicans” is one of his best-known phrases and he did so with projects such as the Mayan Train or the suspension of the construction of the capital airport in Texcoco.
However, that of Sunday is unpublished: will be the first formal consultation that will be carried out throughout the Mexican territory following the channels established by the Constitution since this figure was included in it and was regulated by a federal law of 2014.
But what AMLO presented as a great sample of participatory democracy for the people to decide whether the decisions of politicians in recent years should be investigated and clarified, soon made white of strong criticism.
One of those that resonates the most is whether it is correct to pose a question like this to the public and leave in their hands the decision on a role that should fall in any way to the judicial authorities.
There are also enormous doubts due to the ambiguity of the question to be answered, and even more because the unknown about what consequences it will really have if the “yes” wins in case the 40% of voters turn out to vote for it to be binding.
“Justice is not consulted”
“A consultation is not necessary to investigate who has to be investigated. This is a duty of the State and of the Attorney General’s Office that is not conditioned. As they say, justice is not consulted ”, explains to BBC Mundo Pedro Salazar Ugarte, director of the UNAM Institute of Legal Research.
The political analyst José Antonio Crespo agrees by stating that “you cannot consult the application of the law in a state of law”.
“ Also, they are going to ask something we already know. Yes gentlemen, a 95% we want it to be investigated and eventually punished responsible for crimes. They don’t have to ask. And if you want to know, you better do a survey, which would be less expensive ”, he tells BBC Mundo.
However, the professor and researcher at the Colegio de México Violeta Vázquez-Rojas believes that the meaning of the query has been misinterpreted.
“The question is not whether the law is applied or not, it is whether it is investigated or forgiven. It is to know if the citizenship puts an end to these past wrongs and lets the investigations continue their course, if there are any, but without that popular demand, “he says.
For this reason assures that in the hypothetical case that the “no” wins, the Prosecutor’s Office would not be ordered not to investigate, but that there would simply be no such express request from the population.
“What can come out of the consultation is a citizen mandate to initiate judicial procedures or other types of alternative legal justice, to give the president the legitimacy to act undertake the necessary investigations ”, he opines.
But Salazar, author of “Power over law. The case of the popular consultation to judge former presidents “, qualifies the initiative as ” political show and waste of money “ that will be remembered as” a bad precedent for the history of popular consultations in Mexico. ”
“ For me, this is a propaganda instrument of the president to hit governments of the past that today are opposition. I see an exclusively political use of it, ”says Crespo.
A long process
The truth is that this query It has been quite a long-distance race for the Mexican president.
Even before coming to power, AMLO raised the need to let the population rule on whether it should prosecute the five former presidents of Mexico for various reasons.
Last June, he again accused Carlos Salinas de Gortari of benefiting his relatives during his mandate without holding public tenders. To Ernesto Zedillo, for converting private debts into public debt in the case of the Savings Protection Bank Fund (Fobaproa).
A Vicente Fox pointed it out because “he loaded the dice in the election of the 2006 (when AMLO came in second place and denounced an alleged electoral fraud) to to impose Felipe Calderón, is an attack on democracy, “he said.
A Calderón accused him of the well-known” war against drugs ” that he led and that “turned the country into a cemetery.” Of his predecessor, Enrique Peña Nieto, said that he should be tried for “obvious acts” of corruption and for the statement that the former director of the state oil company, Emilio Lozoya, made against him for allegedly participating in a bribery ring.
AMLO’s first attempt to convene the consultation was to mobilize his supporters to get 1.8 million firms. But finally, before the anticipation that they would not be achieved, the president presented the question of the consultation directly to the Senate as allowed by law, and that later went to the Supreme Court.
The The initial proposal mentioned the names of the five former presidents and asked whether or not they agreed with the authorities investigating and, where appropriate, punishing the alleged commission of crimes during their respective steps.
In the past, other proposals were declared unconstitutional by the judges since the Constitution does not allow voting popular issues related to human rights, national security, electoral legislation or State income and expenses, among others.
“On other occasions, the Court said that the matter of the consultation could not be separated from the question asked. However, in a very surprising decision, six out of eleven ministers said this time that the matter raised was constitutional, but they reformulated the question, ” Salazar tells BBC Mundo.
That first proposal “violated human rights such as the presumption of innocence. At least the Court was consistent in saying that you cannot prejudge a specific person with a kind of special court. This is exclusive justice and it is constitutionally prohibited “, he explains.
“ Ambiguous ”question
Thus, the Court changed the question to read as follows: Do you agree or not that the pertinent actions be carried out, in accordance with the constitutional and legal framework, to undertake a process of clarification of the political decisions made in recent years by political actors, aimed at guaranteeing justice and the rights of possible victims? ”.
It should be noted that the query does not seek to eliminate no jurisdiction that prevents the former presidents from being judged, since it does not exist in Mexico. “There is no special legal protection for them, they are citizens like all of us and can be investigated”, recalls Salazar.
But the ambiguity in the wording of the new question, without specifying people or period of time to which it refers, is one of the points that most criticism has received. The British media The Economist said that “could have been devised by Cantinflas.”
“It is a bland question, without definition and not clear. Who would be investigated? If everything is included in that question. And who will decide who? Will it be the government? Because it would do so with a biased criterion and that is prevented by the law of consultations “, says Crespo.
The professor at the Center for Economic Research and Teaching (CIDE) interprets that, based on the” years past ”mentioned in the question, members of the current government, which began in 965.
But Vázquez-Rojas understands that the interpretation is clear. “We know who the relevant political actors are and we know that ‘past years’ refers to the past of this Administration. Also, because this government will submit to a consultation to revoke its mandate in March of next year. ”
What will it be for?
Thus, the interpretations of what the meaning of the question is are many and diverse. AMLO himself insists that the idea continues to be to know whether or not they want to investigate and judge the five former presidents.
“It is another text, but in essence it is that,” he said a few weeks ago, despite the fact that the reformulated question no longer makes that statement.
But the uncertainty is even greater when answering perhaps the most important question: What use will it really be if you win the yes with the participation necessary to make it binding?
Crespo believes that “it will not have any concrete consequence.” “We do not know. We would wake up on Monday without knowing what implications it has or what it is for. That is why I say that, whatever the result, it will be sterile ”, replies Salazar.
And it goes further. “The best proof of the irrelevance of the consultation is that the Prosecutor’s Office has the same obligations today as next Monday when it comes to acting on corruption matters. The consultation will not change your powers, responsibilities or functions at all. Nothing. ”
Truth Commissions
The president of the Supreme Court, Arturo Zaldívar -who voted in favor of the consultation-, has recognized that the result “could not oblige” in any way the Prosecutor’s Office or the Judicial Power, since that “what the law mandates must be done regardless of public opinion.”
Instead, he pointed to that one of the initiatives that could lead to the consultation is the formation of Truth Commissions or other processes to guarantee the rights of victims of human rights violations in Mexico.
“Regardless of the result, if people say ‘we do want justice,’ we will begin to establish a truth commission until the former presidents answer for the crimes they committed,” he said. Thursday Mario Delgado , national president of the AMLO (Morena) party.
Salazar remembers that creating a commission can be done at through of a law, of a reform or changing the famous National Commission of Victims. “A popular consultation is not required. But the question of the consultation does not say anything of that either “, underlines the lawyer.
Interpretation of the results
The vast majority of forecasts point, in fact, that the minimum of 41% voter turnout (more than 37 million votes) necessary for the result this Sunday to be binding.
But, before the Anticipating that the majority of voters will do so for the “yes”, Vázquez-Rojas believes that AMLO could present that result “if it is minimally forceful” as “a citizen expression” more than enough to ask for the past to be clarified no matter what the minimum participation is not reached.
“Critics with the consultation will say that if there was little participation It was because people did not want to participate in this absurd thing “, predicts Crespo.
” Meanwhile, the government will throw him out blame the court for changing the question. Or the National Electoral Institute (INE) for not having organized well, for not having made adequate publicity, for not putting all the boxes to vote… ”.
The INE has not received an additional budget for part of the Executive to organize the consultation. Will spend $ 26. 5 million dollars and will install less than 60, 000 polling stations in the country, which is a third of those located in the midterm elections last June.
For now, the president assured that he will not participate in the consultation. Paradoxically, said that if he did , would vote for “no” as he does not wish to seek revenge against former presidents. “Sorry yes, I forget no (…). I’m thinking forward, ”he said a few weeks ago.
Vázquez-Rojas considers that this position shows that AMLO is not interested in carry out a political persecution against his predecessors , as some accuse him.
Crespo, on the other hand, believes that it only shows that “wants to wash his hands” to say that there has already been a public condemnation of the citizens ” enough so that the law is not applied ”against those who deserve it.
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